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Incentives Revisited: Which Lying Liars Do You Favor?

In response to the question of why, Nebraska Senior District Court Judge Richard Kopf provided a candid and detailed answer. His answer consists of nine points, delivered with his usual aplomb and sense of humor, and with remarkable honesty.

This is noted because it’s easy to offer pat answers, the ones we fall back on regularly to win the point and avoid reproach, but which aren’t true. Judge Kopf has answered with unvarnished truth, which is why he gets himself into a jam on the interwebz so often.

By my reading, Judge Kopf has largely validated Harold’s revelations, that it’s just a matter of going with the odds, and the odds favor the police. A commenter notes that the explanations bear the scent of rationalizations, to which Judge Kopf asks, what, then, would be his motive to rationalize? I’ll take a stab.

There are judges who are malevolent, incompetent and venal, the righteous avenging angels or the stamp-lickers in party boss’ offices who were ignored as buffoons before they got a robe. None of these descriptions apply in any way to Judge Kopf. He is a judge who deeply desires to do his job fairly and well.

The problem isn’t the man, but the job. We demand they be magicians, omniscient yet tempered by our expectations that the person in the robe has abilities beyond those of any other human being. Upon accepting the responsibility, the virtuous judge tries to fulfill these expectations. In his head, he must believe the he is doing so, or at the very least trying his very best to do so. The alternative is unthinkable, as he cannot accept the premise that his best efforts to be fair produce the same results as the venal judge, the idiot judge.

And indeed, to the extent his motives are pure, he is by no means that evil judge. But does that mean the outcome is any different, because he labors under the constraints that apply to all humans, rather than those possessed of magical powers?

So why might the explanations be rationalizations? Because no one, not judge, not jury, has the capacity to see into the hearts and minds of others to determine truth, and that isn’t a reality with which a good man charged with exerting life and death authority over others can live with.

And so, while he may have no choice but to accept that he is not always right, he must similarly believe that he tries to be right, and that he is right more often than not, because he wouldn’t be able to sleep otherwise. It’s the dilemma of a good man in a bad job. Some, like Judge Denny Chin, characterize it as “rule and roll.” Others can’t shake it off so blithely. Gestalt demands a reason, and the mind does what it can.

But Judge Kopf offers hard reasons as well. In bullet point 3, the judge notes that defendants rarely testify, leaving the judge with little choice but to credit police testimony. In one of the final cases heard by then-Judge Michael Mukasey before he left the bench to eventually assume the rank of General at the DoJ, I put my client on the stand in a suppression hearing.

The defendant was a fascinating guy, having made millions by purchasing stock in emerging technologies, like AOL, but whose bipolar issues prevented him from exercising the judgment needed to stay clear of drug deals. He spent half his life in prison, and the other half in a Bel Air mansion. He was always a fun lunch date, with a fondness for caviar, though we argued constantly over whether osetra was better than sevruga.

He took the stand fully aware of the fact that he had essentially no chance of winning. It wasn’t about whether he did the crime, but whether he waived his right to be questioned without his attorney present. He was a very smart, very experienced defendant. He knew exactly how to exercise his rights, and the agent lied through his teeth about his waiving them. He didn’t mind going for a rest at the government’s expense, but he couldn’t bear doing so because of the agent’s lie.

After the hearing, I argued the defendant’s cause to Judge Mukasey. The short of it was that we were well aware that we had just engaged in a pissing match with the government, a doomed he said/she said, that was not only unlikely to suffice, but would give rise to an obstruction of justice enhancement claim by the government for the defendant’s temerity in exercising his constitutional right to testify and challenging the perfect veracity of the agent.

Judge Mukasey muttered a couple of words of no consequence, looked down, looked around, then looked down at the bench again, silent. For a brief, shining moment, I thought perhaps we cracked the veneer. He then announced that he found the agent credible and suppression was denied. But then he added that he didn’t find the defendant incredible, such that his testimony was false and obstructed justice, and quickly left the bench.

In the comments to Judge Kopf’s post, there is a discussion about the relative incentives to lie, raised by the judge’s second bullet point. While it’s a good discussion, I think it misapprehends the nature of who lies about what and why. There are lies about the ultimate outcome, whether the crime happened and whether the defendant did it, and then there are lies about the process of getting to the ultimate outcome, the search, the statements, the identifications.

The risk/reward ratio is very different for the agent and the defendant. The argument, why would an agent lie, is easily knocked down. He does so because he believes the defendant guilty and that it’s his job to move the case to that conclusion. He can do so because there is essentially no risk that he will be found incredible, and even if he is, no risk that his deceit will be found intentional.

And that’s because

While I do not think of myself as “pro prosecution,” I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order.

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16 comments on “Incentives Revisited: Which Lying Liars Do You Favor?”

I reread Harold’s reflections more carefully. You are right to stress that the pressure of the assembly line on the judge should never be underestimated by criminal defense lawyers. It takes real skill to get your defendant off that line.

By the way, I loved your story about Judge Mukasey. I hope I would have been smart enough to think of Judge K’s ultimate solution–I believe the cop, but the defendant’s testimony does not warrant an “obstruction” bump.

I can’t speel worth a damn either. I meant to write: “I hope I would have been smart enough to think of Judge Mukasey’s ultimate solution–I believe the cop, but the defendant’s testimony does not warrant an ‘obstruction’ bump.”

“There are lies about the ultimate outcome, whether the crime happened and whether the defendant did it, and then there are lies about the process of getting to the ultimate outcome, the search, the statements, the identifications.”

Like. This discussion had gotten me thinking along similar lines. The process is expected to be performed in a manner that respects the rights of the accused. When does the agent of the process have the most incentive to lie about that process? Clearly when he has not met that expectation but does not want to blow the game for his team right out of the starting gate.

Given that, are there times when those agents are more likely to not meet the expectation? Meeting the expectation can often be hard to accomplish, but are there cases where the barrier is even higher than usual? Cases where the testimony of the agent should be received with more skepticism and critical judicial scrutiny than usual? If so, and if judges are not already making such distinctions, then perhaps there is an opportunity to at least reduce the problem.

Irving Younger raised this in The Perjury Routine, The Nation, May 8, 1967, and later in People v. McMurty. There was never any question that the defendants in the “dropsy” cases had drugs. Without drugs, there would have nothing to drop. But the incantation of dropsy to get to conviction was the problem.

So dropsy was outed as a lie, and essentially disappeared from the law enforcement lexicon. And then, all was well with the world, because the problem wasn’t testilying, but dropsy. Life went on, cops told new stories and the guilty were convicted.

Or as one of my favorite departed columnists, Murray Kempton, once wrote, “there they go again, framing the guilty.”

I suppose it’s a fool’s errand to expect that a judicial system will command a guilty defendant’s respect, but it doesn’t have to actively court his contempt. The defendant know when the cop’s lying–after all, he was there. So framing the guilty confirms his belief that the whole game’s fixed. The cynicism of it all has never stopped bothering me, which helps explain why I didn’t last more than a few years as a prosecutor.

It never ceases to amaze me how strong the grip on my arm is when a client squeezes in fury and hisses in my ear, “he’s lying.” No matter how jaded the defendant, they still have this place inside them that believes that cops are supposed to tell the truth, and they still can’t believe it when they lie and no one seems to care.

So you’re exactly right: the outcome is pure cynicism, as some judge lectures them about being a law-abiding citizen and obeying the law, immediately after the cop lies through his teeth and sneers at the defendant. And we wonder why they won’t behave the way we want them to.

Yes, it’s true that you didn’t advocate killing people this time, but there is still a minimum threshold of stupid below which comments don’t get posted. Unfortunately, you were far below that minimum. A suggestion: every time you begin a comment with “last time I looked,” it tells me that what follows is going to be another of your mind-numbingly stupid fantasies about what the law should be. As a lawyer, I feel an obligation not to make people who read here stupider.

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Scott H. Greenfield

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